Paul Lewis
Around two-thirds of people over 55 have made a will. But far fewer have taken any practical steps to help relatives cope when they cannot make decisions for themselves. Because we are living longer, more and more of us have a period of physical and mental dependency late in life.
There are an estimated 750,000 people with dementia in the UK and that number is expected to rise to a million by 2025. If you add those with stroke, brain injuries and Parkinson’s disease, the number who cannot fully make their own decisions may already have reached that total.
A legal agreement that authorises trusted relatives or friends to act in our place in case we do become incapable of acting for ourselves is called a Power of Attorney.
Making one can seem complicated and expensive, but if you have not appointed an attorney before you lose the ability to make your own decisions, you are leaving your relatives with much more difficult and expensive alternatives. So, like making a will, sorting out in advance who can act for you is a kindness to your loved ones.
Lasting power of attorney
In England and Wales you make a Lasting Power of Attorney. It comes in two parts – one to cover your money – called “property and financial affairs” – and one to cover your health and welfare – who decides, for example, if you are to go into a care home. You can make either or both. In Scotland you make a Continuing Power of Attorney for your finances and a Welfare Power of Attorney for your health, or you can do both together.
There are three parts to the application for a Lasting Power of Attorney. First, the person granting the power (the donor) has to fill in a form naming the person or people who will be their attorneys. It is normally best to state that they can act “together and independently” – each of the attorneys can act by themselves. If you specify just “together”, then they all have to agree before they can do anything. That can cause delays and difficulties. It also means that if one attorney dies the power will become invalid unless you specified a replacement.
The donor can also specify up to five people who are notified about the power – and any of them can object to it. Second, you have to get a certificate from someone else unconnected with the attorneys to say that the donor has “mental capacity”, in other words understands that they are giving the attorneys the power. This person can be a doctor, vicar, bank manager or lawyer or a friend who has known the donor for at least two years. The third part of the form has to be filled in by the attorneys about themselves.
The LPA has to be registered before it has effect and that has to be done while the donor still has mental capacity. Once it is registered, the attorneys can act for the donor. But normally the registered power is put away and only brought out once the donor wants the attorneys to act, perhaps because of failing eyesight or mobility or the loss of capacity to act for him or herself. An attorney has to act in the donor’s best interest, and you can specify when and how you want them to act in your application. It is very important to choose attorneys you trust completely. If a relative or friend who is not an attorney suspects abuse of the powers, they can complain to the Office of the Public Guardian and that will be investigated.
Cost
In England and Wales you have to pay £120 for each power when you register it – so £240 for both. And if you make a mistake and it has to be done again you pay the full amount again. In Scotland the cost is £70 and if you do both parts together; the price is still just £70. In both countries these are individual costs – so double them for a husband and wife each making a power. In England and Wales, but not in Scotland, the fee is not charged if the donor’s income is below £12,000 and is reduced if it is below £16,500.
You can find a specialist solicitor through Solicitors for the Elderly. Its members should offer a professional service at a reasonable cost. Alternatively, a will writer will be cheaper but of variable quality. Use a member of the Society of Will Writers or the Institute of Professional Willwriters. It is also possible to print off all the forms from the website of the Public Guardian and fill them in yourself. But they can seem long and daunting. And if you get something wrong, in England and Wales you have to pay all over again.
No attorney
If you do not make a Power of Attorney, your relatives will have a much harder time if you lose mental capacity. In England and Wales they will have to go to the Court of Protection and apply to be appointed as a deputy to run the person’s affairs. In Scotland they go to a Sheriff Court to apply for financial guardianship. These procedures take longer and cost more and the deputy or guardian is always subject to supervision by the court. There will be fees and costs for them. People with low incomes may get these reduced.
If no attorney is appointed the Local Authority may apply direct to the courts to become a deputy or guardian. That can cut out the relatives altogether.
Enduring power of attorney (EPA)
If you made an (EPA) in England and Wales before October 1, 2007 then that power is still valid. Unlike Lasting Powers of Attorney (LPA) the EPA can be registered once the donor has lost the capacity to act for themselves. If the EPA is taken to be registered now and contains errors or is invalid for other reasons, then it cannot be used and an LPA has to be taken out from scratch. But if the EPA was validly made then it can still be registered.
In Northern Ireland Enduring Powers of Attorney are still used.
Further information
Office of the Public Guardian, www.publicguardian.gov.uk/, 0300 456 0300
Office of the Public Guardian (Scotland), www.publicguardian-scotland.gov.uk, 01324 678 300
The Office of Care and Protection, www.courtsni.gov.uk, 028 9023 5111
Solicitors for the Elderly, solicitorsfortheelderly.com
Written by Paul Lewis, this article was first published in the January 2011 issue of Saga Magazine. Paul's opinions are his own and for general information only. Always seek independent, professional, financial advice.